Applicability of Limitation of Liability Clauses in Turkey
Updated: May 8, 2018
A common question we receive is about the applicability of limitation of liability clauses under Turkish Law.
The general principle regarding the exclusion of liability is stipulated under the first paragraph of Art. 115 of the Turkish Code of Obligations w. no. 6098. The first paragraph of Art. 115 stipulates that; “A previously made agreement to the effect that the debtor shall not be liable for gross fault shall be strictly null and void.”.
Therefore, it is possible to exclude liability if liability occurs due to slight negligence. Please note that Art. 115 does not make a distinction between exclusion or the limitation of liability, therefore it is accepted that if liability can be excluded, it is also possible to limit the liability.
Under Turkish Law, slight negligence occurs if the relevant party does not act with the level of diligence/care of a careful/diligent person, and gross negligence occurs if the relevant party does not act with the level of diligence/care of an ordinary person.
Gross fault covers both willful misconduct and gross negligence. Therefore, the general rule in Art. 115 p.1 is that the limitation/exclusion of liability clauses (that limit/exclude liability arising from willful misconduct and gross negligence) is null and void. Therefore, it is only possible to exclude/limit liability if that liability arises due to slight negligence (slight fault).
Having said the above, contracts usually contain limitation/exclusion of liability clauses which limit/exclude liability without making a distinction between willful misconduct, gross negligence and slight negligence. It is accepted under Turkish Doctrine that these types of stipulations can only limit/exclude liability that arises due to slight negligence (fault). Therefore, these types of stipulations are only partially null and void.
In light of the above, the limitation/exclusion of liability stipulations does not make a distinction between levels of fault and is only applicable for slight negligence/slight fault. Therefore, any such stipulation shall be valid and applicable, both for the exclusion of liability and limitation of liability if the liability arises due to slight negligence/fault.